Burwell v. Hobby Lobby: Fuck the RFRA

Folks on the internet seem to not understand how Burwell v. Hobby Lobby happened.  To explain, let's take a jaunt down legal precedent lane.

In Reynolds v. United States (1878) the Supreme court ruled that religious duty is not a defense to a criminal indictment.  You do not get to break a law, and defend yourself by claiming "religion".

To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

 In 1878:  Law > Belief  A person can maintain religious beliefs, but when those beliefs come into conflict with established law, the law wins.

In Employment Div. v. Smith (1990) the Supreme Court ruled that states are not required to accommodate acts on grounds of religious belief.  One remains subject to a "neutral law of general applicability"  despite whether or not the neutral law conflicts with one's religious beliefs.

The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind -- ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws, to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races. The First Amendment's protection of religious liberty does not require this.

Further

But to say that a nondiscriminatory religious practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the courts. It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.

In 1990:  Law > Belief.  Exemptions for religious practice are permitted, but not required by the Constitution. 

Guess what happens next.

Next, we come to 1993, and the Religious Freedom Restoration Act.  This bill can be simply summarized as, "All that legal precedent?  Fuck that noise."

- The purposes of this Act are
(1) to restore the compelling interest test as set forth in Federal court cases before Employment Division of Oregon v. Smith and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.

This effectively overturned those previous rulings.  After the RFRA, the government cannot limit a person's exercise of religion, except in two cases.

(b) EXCEPTION. -- Government may burden a person's exercise of religion only if it demonstrates that application of the burden to the person --
(1) furthers a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.

 And what do we find in Burwell v. Hobby Lobby?

(c) The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is a compelling governmental interest, but the Government has failed to show that the contraceptive mandate is the least restrictive means of furthering that interest. Pp. 38–49.

That, internet, is the how and why women lost their contraception coverage.  Because back in 1993, all but three congressmen voted for the ReligiousFreedom Restoration Act.

When folks be bitching on Facebook, you may want to point out that the problem is not with SCOTUS, or Scalia changing his mind.  The problem is religion, and the RFRA.

This may also be useful to cite whenever your naive Liberal friend spouts the wrongheaded maxim of "You can believe whatever you want, so long as...".

When people believe X, they're going to try to actualize X.  No matter how wrongheaded that X may be.

Where does this leave us?

To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

Burwell v. Hobby Lobby

Supreme Court: Child Rape

Today the Supreme Court ruled 5-4 against a Louisiana law allowing the death penalty to be utilized in child rape cases, the majority saying that invoking the death penalty violates the Constitution's ban on cruel and unusual punishment. Simply stated:

"The death penalty is not a proportional punishment for the rape of a child."
- Justice Anthony Kennedy

Think about that.

You don't have to be dragged into a discussion of the legalese; you don't have to explore constitutional history or judicial precedents. You don't even have to get into a discussion on the justification for the death penalty. The conversation begins and ends with "proportional punishment for the rape of a child".

I fucking dare you to fathom that.

Just attempt to enter the mindset in which "proportion" is the mechanism at which one grasps to assess child rape. Pretend your way through the thought process which begins with "What is the approximate quantification of harm which rape imposes on a child?" Locate the point of estrangement at which one must stand in order to apply "cruel and unusual" to the punishment before the act.

What is the "proportional punishment", Anthony Kennedy? What legal, judicial, bullshit fabrication can you shoddily concoct which would place upon a 43 year old man the same, proportional, harm he inflicted in an eight year old girl when he raped her. An eight year old girl sorting Girl Scout cookies in her garage, Anthony Kennedy. A child.

It is beyond unfathomable, beyond wretched, beyond deplorable. It is beyond death, beyond murder, Anthony Kennedy. To be an eight year old girl sorting cookies in your garage one moment and in the next moment to be a sexual object for your stepfather? QUANTIFY THAT, Anthony Kennedy! Articulate a proportional scenario to which we can subject that 43 year old man! Identify the particular legal qualities manifest in child rape and apply them to your delusional equation which provides a neat little package of punishment tied up with a fucking bow!!

You can't do it, Anthony Kennedy; no one can. You can't articulate rape, can't explain it, can't understand it. There is no proportion to be created or assessment to be made. You just kill him.

You kill him. You kill him and every person like him. You hunt them down, you gather them up, and you kill each and every one. You do not try to understand rape, to quantify rape, to concoct some proportional punishment to rape. He raped an eight year old girl. He dies.

It won't make the eight year old girl feel better. It won't even begin to heal or compensate for what he did to her; no one and no thing can heal or compensate for that. Rape is beyond healing or compensation. But attempts at healing, compensation are not the reasons why you kill him.

You kill him because when he saw an eight year old girl sorting Girl Scout cookies in a garage he raped her.

You kill him because rape is worse than death.

The Childish Dissent

In a 5-4 decision the Supreme Court ruled today that "foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts," that Habeas Corpus does still glimmer, albeit dimly, over the shadow of our modern times.

Five to Four.

Four Supreme Court Justices dissented, voted against this most basic, obvious right. John Roberts, Samuel Alito, Antonin Scalia and Clarence Thomas each voted that prisoners, individuals, human beings cannot challenge their detention. They did not vote against the release of the prisoners. The did not vote against the aiding, the abetting of prisoners. They did not vote against the glorification of prisoners. No. They voted against the right of these individuals to simply challenge their detention, the right of these individuals to walk into a United States civilian court and demand proof, evidence, or merely ANYTHING that could justify their imprisonment.

And so we must ask upon what did they base this decision, what clairvoyance aided their assessment?

Scalia said the nation is "at war with radical Islamists" and that the court's decision "will make the war harder on us. It will almost certainly cause more Americans to be killed."

Please.

What evidence, what proof is offered to support this position? What rational argument is its base? Americans will die if terrorist suspects held without proof, evidence, or charges are allowed to challenge their detention? From what laughable realm of fiction does this fear mongering come? In what Nation was Scalia born, raised, educated? Whose history did he learn? Whose values did he adopt?

On March 23, 1775 when Patrick Henry stood before the Virginia House of Burgesses and proclaimed "I know not what course others may take; but as for me, give me liberty or give me death!" was his sentiment dishonest, baseless? Is "Live free or die: Death is not the worst of evils." mere rhetoric? Is Anthony Kennedy's statement that "The laws and Constitution are designed to survive, and remain in force, in extraordinary times" false?

What are we as a nation, John Roberts, Samuel Alito, Antonin Scalia, Clarence Thomas? In what do we believe? Is our legal system little more than the means by which we achieve short-sighted, ignorant, fear-based goals? Do we really want to take a machete to the Constitution and reassemble it with Elmer's Glue, scotch tape, and blind fear? Are you seriously terrified that if Osama bin Laden's former driver has access to a U.S. civilian court we'll all die?

Upon hearing the decision President Bush said "We'll abide by the court's decision. That doesn't mean I have to agree with it."

Of course you don't agree with it, Mr. President. You're disdain for the Constitution is abundantly clear at this point. But John Roberts, Samuel Alito, Antonin Scalia, and Clarence Thomas? Whence the fear these Supreme Court Justicies have for freedom, for rights, for the law? Are they truly so divorced from reality, from history, that the patriotic declarations of our history move neither their minds nor their hearts?

"Give me liberty or give me death!"
"Live free or die!"

Perhaps some still understand the sentiment of these declarations: that it is better to die than to live in tyranny. But for others, for the weak-willed cowards of John Roberts, Samuel Alito, Antonin Scalia, and Clarence Thomas these are little more than hollow reminders of a chivalry long lost and a history quickly forgotten. To them these quotes are delusional. More apt would be a cry that we are mere children perpetually trembling at the notion that the driver of a car could enter a courthouse and be treated like a human being.

"The nation is 'at war with radical Islamists' and that the court's decision 'will make the war harder on us. It will almost certainly cause more Americans to be killed.'"

Please, Scalia. Did you write that statement while cowering behind your mother afraid that the big, bad Islamo-fascist caricatures were going to get you? Or do you actually believe your own tripe?

Resign your posts and retire to your cribs, Scalia, Roberts, Alito, Thomas. We have no use for frightened children on the court.